Peter Niesen's edition introduces us – at least those within the German-speaking academic community – to a not very well-known author, whom some in this community still regard with considerable resentment. The value of his ideas for political theory is only now being recognized in Germany. Niesen presents Bentham's most influential political writings concerning the French Revolution. In these texts, Bentham effectively participates directly in the Parisian debates swirling around the constitution, the declaration of civil and human rights, checks and balances, colonialism and political economics. Niesen's fine edition organizes Bentham's writings on these issues in a way perfectly fitted to refuting many of the common prejudices against Bentham. The sixty-page Introduction combines precise interpretation with discussion of contemporary political and sociological theory and politics. These recently translated Bentham texts are annotated very informatively.

Thanks to Niesen's edition, Bentham's most important political papers are available in German for the first time. This is incredibly helpful since there has been a long, ongoing debate between German and French schools of philosophy of law focusing on the impact of the French Revolution (e.g. Blasche et al. 1989), which highlights Kant and Hegel on one side vs Rousseau and Sieyès on the other. The only British authors who have received recognition among political theorists in Germany have been Edmund Burke, John Stuart Mill and William Blackstone to a lesser degree. A thorough analysis of Bentham's work is still missing, although there have been a few attempts to discuss him recently (Marschelke 2008, Hofmann 2002, Asbach 2009, Rzepka 2013, Marchinak 2015).

On the other hand, Bentham's moral philosophy has been more widely read in German, always with animosity generally speaking towards his hedonism, which has been viewed as short-sightedly instrumentalist in so far as it takes actions to be simply motivated by anticipated rewards. German scholars nevertheless tend to forget that even Kant sometimes refers to psychological motives (‘driving forces’ or ‘amour propre’ in effect) by which individuals typically adjust their actions to the categorical imperative. Moreover, because Kantianism sees utilitarian moral philosophy as purely relative, free of any categorical principles, Bentham's political philosophy has been interpreted in Germany as justifying sacrificing individual liberties in the name of promoting general happiness (e.g. Hruschka, in Juristen Zeitung 56 (2001), pp. 261f.). Hence, Bentham's advocacy of ‘almighty legislative power’ (pp. 87f.) is usually dismissed as being too risky. Germany is now a solid constitutional democracy committed to rule by the ‘Grundgesetz’ (German constitution) even though in some rulings the constitutional court has displayed relativistic or decisionistic tendencies in interpreting civil rights (especially in the Lebach and the Lüth rulings, as well as in the headscarf-rulings of 2003 and 2015).

In Germany, common welfare (e.g. p. 130) as a criterion of political legitimation is associated with autocratic regimes, especially national socialism (Aly 2005), even though the entire philosophy of the Enlightenment (even Hobbes and to some extent Kant) considers common welfare as a leading political principle. Common welfare is thought to offer little guidance regarding normative decisions concerning the equal or unequal distribution of rights or goods (Schmitt 1928: pp. 226ff. vs Rawls 1971: p. 81). The conjunction of promoting hedonistic ends and inequality of rights is typically assumed by German scholars fond of appealing to Kant's concept of dignity, which emphasizes equal liberties as opposed to economic rationality: ‘In the kingdom of ends everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is above all price and therefore admits of no equivalent has a dignity’ (Kant, Groundwork of the Metaphysics of Morals, trans. and ed. Mary Gregor (1998), p. 42). Niesen's collection challenges this account. We learn, for instance, that Bentham rejected common truisms justifying unequal political rights based on gender (pp. 81ff.). According to him, the ability to read was the only criterion for participating in politics since it more than anything else made educated political views likely (p. 79).

Bentham was even willing to extend passive electoral rights to foreigners (p. 81). Niesen's commentary on this score raises alternatives to the Third Preliminary Article in Kant's essay on perpetual peace, thus differing from supra- or international approaches to establish world citizenship (Höffe et al.). Internalizing cosmopolitical rights on the level of the nation-state parallels not only Kant but also Hannah Arendt, who argues that there can only be one human right, namely the right to citizenship (Arendt 1949). Bentham's analytical account of the term ‘human rights’ is actually up to date in that it is fitted for individuals ‘who are still in the original position’ as opposed to those who have already left that state.

One of the most relevant innovations offered by Bentham is his strict rejection of constitutional limitation of legislative power in general and, more specifically, codifying human and civil rights within a constitution. The average German reader will react disapprovingly even though there is a substantial tradition questioning the value of codifying positive human and civil rights in Germany, which is not rooted in democratic thinking. This perspective goes back to Hegel's plea for an ‘organic’ constitution, which was meant to stabilize specific institutions without abstract normativisms. Rudolf Smend's theory of integration and Carl Schmitt's constitutional theory, which both criticize positivism in certain ways, had considerable influence on the constitutional debates during the early stages of the new Federal Republic of Germany. Without actually mentioning Bentham, Hegel's well-known criticisms of the French Déclaration can be seen as a conservative counterpart to Bentham's democratic criticism of constitutional taboo zones: ‘To make abstractions hold in reality is to destroy reality’ (Hegel, History of Philosophy III, 331). Furthermore, Bentham's ultra-democratic criticisms of constitutional ‘eternity clauses’ (pp. 95, 98, 125) on the one hand and his defence of mechanisms for changing the constitution (pp. 101ff.) on the other anticipate more recent worries about the way founding constitutional generations can asymmetrically bind later generations and partly keep them from legislative learning (Frankenberg 2002).

However, Bentham's criticisms go one step further. In contrast to American, French and German constitutional theories, he denies the binding effect of superior constitutional law on parliamentary law for two reasons. The first is the methodological point that parliamentary legislation differs from deduction of specific norms from generic constitutional norms. Instead, parliamentary legislation is an inductive learning process in which correlations between dependent and independent variables are discovered by building and testing hypotheses (p. 128). Therefore, the idea of judicial review must be viewed with caution. Second, and analytically speaking, most constitutional articles, especially declarations of human and civil rights, use the terms ‘can’ and ‘cannot’ without clarifying between physical impossibility and moral or juridical restraint (pp. 131f.). By using the term ‘should not’ instead it would be clearer to legislators that they are being encouraged rather than commanded and that their compliance could be checked by a neutral institution (p. 128).

Long before Carl Schmitt's radical decisionism (e.g. Schmitt 1912), Bentham criticized the naïve understanding of the relationship between constitutional laws and legislation by pointing out the legally innovative character of the legislative branch. For him, it was not simply a matter of subsuming specific norms under generic ones – a point that was also shared by Hans Kelsen. Bentham ruled out the idea that an abstract, material constitutional norm entirely determines the content of parliamentary legislation. Indeed, foreshadowing Kelsen's Pure Theory of Law, every step in ascertaining a law always involves legal innovation as well as application because whoever applies the law is bound as well as free to assess the superior norm (Kelsen, in ASRP 17 (1923/24), pp. 374–408). Because of this nomological hiatus between abstract constitutional norms and concrete parliamentary norms (p. 128), it is impossible to view the legislative branch as merely executing constitutional norms according to Bentham. Hence, the idea of an external institutional check to legislative compliance with constitutional law – as presented in Sieyès, starting in his 1795 Jury constitutionnaire – can be discarded. But even without an institutional guardian of the constitution, there is, according to Bentham, one last line of defence to protect civil liberties against despotic tendencies of the legislative branch. Like Locke, he views the informed deliberating citoyen as a highly effective limiting force – a proto-democratic idea also discussed by Kant (cf. Niesen 1998) and later more systematically as the Deliberative Theory of Democracy (Habermas 1992). The only institutional condition is absolute freedom of speech.

Considering how subtle and original Bentham's political opus is, it is fascinating that until now, at least in Germany, scholars saw little need to familiarize themselves with his political essays. To me, the only explanation lies in our constitutionalistic and expertocratic view of political theory (cf. Maus 1989, 1992, 2011), which has left us trapped in anti-utilitarian clichés and has kept us from realizing what Bentham actually has to offer.